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WASHINGTON, D.C. – On Friday, Senator Tom Carper (D-Del.), top Democrat on the Environment and Public Works Committee (EPW), led all EPW minority members in a letter to Environmental Protection Agency (EPA) Acting Administrator Andrew Wheeler calling for the agency to reverse course on a proposal that would exempt farms from reporting requirements for hazardous air emissions from animal waste under the Emergency Planning Community Right to Know Act (EPCRA). In the letter, the senators noted that EPA lacks the legal basis to disregard key elements of EPCRA. The law was enacted in 1986 to help authorities track airborne health hazards, deploy emergency response efforts to mitigate impacts on public safety, and provide citizens with information about potential chemical hazards in their communities.  

“EPA is required to faithfully execute the laws as passed by Congress,” the senators wrote. “EPA’s proposed rule vastly exceeds EPA’s statutory authority and countermands unambiguous Congressional intent. EPA’s proposed interpretation of reporting requirements for hazardous air emissions from animal waste relies on a statutory interpretation that was considered, and specifically rejected by Congress, when it enacted the FARM Act into law. EPA should withdraw this proposed rule and faithfully execute and enforce EPCRA and CERCLA reporting requirements consistent with the laws passed by Congress.”

Earlier this year, President Trump signed the Fair Agricultural Reporting Method Act (FARM Act) into law, narrowly exempting animal waste air emissions on farms from reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or the Superfund law. Congress chose to leave in place reporting requirements under EPCRA. Despite Congress’s express desire, on November 14th, Acting Administrator Wheeler proposed to extend the hazardous air emission exemption for farms to ECPRA, effectively violating congressional intent of keeping the law’s reporting requirements intact.

The letter was also signed by Senators Ben Cardin (D-Md.), Bernie Sanders (I-Vt.), Sheldon Whitehouse (D-R.I.), Jeff Merkley (D-Ore.), Cory Booker (D-N.J.), Ed Markey (D-Mass.), Tammy Duckworth (D-Ill.), Chris Van Hollen (D-Md.) and Kirsten Gillibrand (D-N.Y.).

This senators submitted this letter on Friday as a public comment at the proposal’s docket under EPA-HQ-OLEM-2018-0318. A copy of the letter and its appendices can be found HERE, and the full text of the letter is below:

 

December 14, 2018

  

The Honorable Andrew Wheeler

Acting Administrator

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, DC 20460

 

RE: Proposed Rule Amending Release Notification Regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA) for Air Emissions from Animal Waste At Farms (Docket ID No. EPA-HQ-OLEM-2018-0318)

 

Dear Acting Administrator Wheeler,

We write regarding the Environmental Protection Agency’s (EPA) proposed rule, published in the Federal Register on November 14, 2018. The proposed rule would exempt hazardous air emissions from animal waste from reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA). In our view, EPA has no legal authority to exempt these emissions from farms from the reporting requirements contained in Section 304 of EPCRA.

In 2008, EPA established different reporting requirements for air emissions from animal waste under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and EPCRA. Livestock operators have successfully been reporting hazardous air emissions from animal waste to state and local officials under Section 304 of EPCRA since at least 2009.

The legal basis for EPA’s proposed rule is fundamentally flawed. EPA’s proposal is premised on an erroneous interpretation of the unambiguous requirements and exemptions that are included in the recently enacted 2018 Fair Agricultural Reporting Methods (FARM) Act. EPA’s proposal also ignores the legislative history that accompanied the introduction, consideration, and enactment of the FARM Act. In the FARM Act, Congress crafted a narrow statutory exemption from CERCLA Section 103 reporting requirements, but deliberately took no steps to exempt farms from similar reporting requirements under EPCRA. Even a cursory review of the FARM Act’s legislative history makes clear that Congress intended a narrow exemption for reporting requirements for certain air emissions under CERCLA, and only CERCLA. Any EPA rulemaking that attempts, as the current proposal attempts, to exempt reporting requirements for hazardous air emissions from animal waste has no basis in statute or Congressional intent. More to the point, the policy objectives of EPA’s proposed rulemaking were specifically considered, and rejected, by Congress during the FARM Act’s consideration.

I. Background

 

In 2008, EPA finalized a rule to exempt most air emissions reporting requirements from animal waste on farms.[1] Under the rule, all farms were exempted from any CERCLA hazardous substances reporting requirements for emissions resulting from animal waste. However, under the rule, only a subset of farms were exempted from reporting requirements under EPCRA; EPA retained emissions reporting requirements for certain large farms.

In 2017, the D.C. Circuit Court of Appeals vacated EPA’s 2008 reporting exemption in its Waterkeeper Alliance v. EPA decision.[2] Following the court’s vacatur, all farms with emissions of hazardous substances in excess of the reportable quantities were required under CERCLA Section 103 to report those emissions to the National Response Center, and required under EPCRA Section 304 to separately report those emissions to state and local officials.

After Waterkeeper Alliance, various stakeholders engaged members of Congress about reporting requirements for animal waste emissions. Some agricultural stakeholders found these reporting requirements to be confusing and sought relief from the potential administrative and regulatory burdens associated with reporting such emissions. Other stakeholders, including environmental, public health, state and local government officials, and constituencies adjacent to large livestock operators made clear that the information made available to the public through EPCRA Section 304 reporting is extremely beneficial to them. These emissions data help inform siting and zoning decisions for large livestock farms; they provide important data for public health risk assessments; and, they help document specific harms to human health and the environment that impact areas surrounding large livestock operations.

In response to these competing concerns raised by interested stakeholders, Congress enacted the FARM Act in March 2018 as Title XI of Division S of the Consolidated Appropriations Act, 2018 (P.L. 115-141). The FARM Act created a narrow reporting exemption under Section 103 of CERCLA for farms for releases of hazardous substances that arise from animal waste and that are released into the air. Notably, this language deliberately did not amend reporting requirements under EPCRA. The FARM Act was carefully drafted to only provide a statutory exemption from reporting under CERCLA. The provision had the intended effect of preserving the ‘status quo’ for farms under the 2008 rule with respect to being exempt from CERCLA reporting. This achieved the goal of significantly reducing the administrative burden of emissions reporting for farms. Instead of having to prepare and submit two separate reports on their emissions, farms would no longer need to file an emissions report with the National Response Center, as would otherwise be required under CERCLA.

At the same time, this compromise ensured that community members and local officials seeking emissions data would still be able to access it through EPCRA. Citizens have come to rely upon having access to this data and larger farms already had substantial experience with the EPCRA reporting requirements for hazardous air emissions because they had been reporting those emissions for nearly a decade. When enacting the FARM Act, Congress was able to strike a careful balance which simultaneously reduced reporting burdens on farms while preserving the public’s access to valuable information to which they remain legally entitled under EPCRA.

II. Legislative History and Committee Consideration of the FARM Act

 

The text of the FARM Act in P.L. 115-141 is identical to the text of S. 2421, sponsored by Senator Deb Fischer of Nebraska, which was introduced on February 13, 2018, and which was referred to the Senate Committee on Environment and Public Works (the Committee). Prior to its introduction, Senator Fischer’s office shared earlier drafts of the FARM Act which included statutory language that exempted farms from animal waste air emissions reporting requirements under both CERCLA and EPCRA. While the offices involved in those negotiations were interested in providing farms relief from reporting requirements under CERCLA, we opposed such an exemption under EPCRA. In exchange for our support for the bill, Senator Fischer agreed to drop the offending provisions which would have exempted farms from reporting under EPCRA, and instead to limit the scope of the bill’s reporting exemptions to only those required under Section 103 of CERCLA. It was only after those changes were incorporated into the bill’s legislative text that broad, bipartisan support for the FARM Act became possible.

After the bill was introduced, the Committee held two legislative hearings on this language. The first hearing entitled “Legislative Hearing on S. 2421, the Fair Agricultural Reporting Method Act,” took place in the Subcommittee on Superfund, Waste Management, and Regulatory Oversight on March 8, 2018.[3]  The full committee also held a legislative hearing entitled “S. __, the Agriculture Creates Real Employment (ACRE) Act,”[4] on March 14, 2018. The hearing was on a draft bill titled the ACRE Act, and the text of S. 2421 was included in that bill as Section 3.[5]

During the course of those hearings, witness testimony and member statements made clear that the FARM Act was intended only to apply narrowly to reporting requirements under CERCLA. For example, during his opening statement in the subcommittee hearing on March 8, 2018, Subcommittee Ranking Member Booker stated:

“I was happy to see that this bill, S. 2421, only proposed to exempt CAFOs from reporting under CERCLA, and not under EPCRA. And I know that Senator Carper and others fought to limit the scope of the bill before signing on.”[6]

Full Committee Ranking Member Carper, who was an original cosponsor of the FARM Act and helped draft its provisions, reiterated this point in his opening remarks, stating:

“One thing I worked hard on this legislation with Senators Fischer and Barrasso and others, as we were developing this legislation, is to make sure the FARM Act makes no change to EPCRA reporting, no change… I just want to thank both Senator Barrasso, and thank Senator Fischer, others, other staffs, and others for working with my staff and me and agreeing not to amend EPCRA in this bill. This is an issue that was critical for many members on our [D]emocratic side. We have repeatedly heard concerns from [s]tate and local officials, public health experts and other member of our communities who want information about what is in their air, and this bill seeks to strike a careful balance. As a result, it enjoys broad, bipartisan support.”[7]

Witnesses at both hearings also understood that Congress intended for EPCRA reporting requirements to continue if the legislation were enacted. Several Committee members specifically asked witnesses whether enacting the FARM Act would affect reporting requirements for farms under EPCRA. Those witnesses testified that the legislation would not, as they understood it, based both on a plain reading of the text and the manifest Congressional intent behind it. For example, in the subcommittee hearing on March 8, 2018, Senator Van Hollen had an extensive discussion with Bill Satterfield, Executive Director of the Delmarva Poultry Industry, on this point. Senator Van Hollen asked whether eliminating the reporting requirement under CERCLA would necessarily impact reporting requirements under EPCRA. Mr. Satterfield indicated they would not, because the two statutes were independent and had different purposes:

Senator Van Hollen.  And the last comment I will make, Mr. Chairman, because I really am trying to figure this out with you, is in the decision, in the court decision, the judge said, in the final rule, that cutting back on CERCLA reporting requirements had the automatic effect of cutting back on Community Right-to-Know reporting and disclosure requirements.  Is there something I am missing here, that is it an automatic flow-through?  In other words, it doesn’t touch that statute, but the Community Right-to-Know statute is directly linked with the CERCLA statute in terms of triggering reporting requirements?

Mr. Satterfield.  My understanding is that, under CERCLA, the reports go to the National Response Center operated by the Coast Guard, and then 30 days later a written report to the regional EPA office.  Under the EPCRA, the Community Right-to-Know, it is my understanding that those reports go to the local and State emergency responders, not necessarily to the Federal people.  So there are two different reporting systems, two different purposes.

Senator Van Hollen.  And they are totally independent, so this legislation, while it may impact CERCLA requirements, would not impact the Community Right-to-Know requirement?

Mr. Satterfield.  That is my understanding, sir.[8]

Other witnesses shared this same understanding of the legal effects of the legislation. During the full committee hearing on March 14, 2018, Senator Fischer asked Doug Miyamoto, Director of the Wyoming Department of Agriculture, about the FARM Act’s effects on EPCRA reporting:

Senator Fischer.  Can you please explain to the Committee the current regulatory framework livestock producers must comply under, and specifically under the bill before us, the ACRE Act and, subsequently, the FARM Act, do certain providers still have to comply with EPCRA reporting requirements?

Mr. Miyamoto.  Mr. Chairman, Senator, they do.  In confined animal feeding operations, they would still have a duty to report under EPCRA and comply with the regulatory requirements there.

Senator Fischer.  So, just to be clear, producers and our large animal feeding operations, they still must comply with EPCRA, the Clean Water Act, and State regulations?

Mr. Miyamoto.  Mr. Chairman, Senator, that is correct.[9]

III. Congressional Research Service Analysis of the FARM Act

 

As part of the Committee’s consideration of the FARM Act, the Committee asked the Congressional Research Service (CRS) to analyze the potential effects of the FARM Act’s amendments to CERCLA. In response, CRS produced two memoranda which were made part of both hearing records, and are included in the Appendix. The CRS memorandum titled “Supplemental Analysis: Fair Agricultural Reporting Method Act/FARM Act (S. 2421)” dated March 13, 2018, explains that the reporting requirements outlined in EPCRA Sec. 304(a)(1) and 304(a)(3) are contingent upon reporting under CERCLA. However, as CRS notes:

S. 2421 would not have a bearing on the reporting of releases of extremely hazardous substances under Section 304(a)(2) of EPCRA though, as this provision is not contingent upon reporting required under Section 103 of CERCLA. If the exemption from CERCLA in S. 2421 were enacted, the applicability of Section 304(a)(2) therefore would remain the same as in current law. An air release of an extremely hazardous substance emitted by animal waste at a farm would be subject to Section 304(a)(2) if all three statutory criteria for reporting were met...

An air release of an extremely hazardous substance emitted by animal waste (e.g., ammonia or hydrogen sulfide) would satisfy the third criterion of Section 304(a)(2)(C) of EPCRA, if the release were to occur in the same manner as a “release” that would require reporting under CERCLA. As outlined in the March 7th CRS memorandum, the term “release” in CERCLA is relatively broad with respect to the manner in which a hazardous substance may enter the environment, including spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment. The term “environment” is defined in Section 101(8) of CERCLA to include surface water, groundwater, a drinking water supply, surface soils, sub-surface soils, or ambient air. Section 329 of EPCRA defines the terms “release” and “environment” similar in scope to CERCLA. The federal regulations promulgated under Section 304 of EPCRA reflect these statutory definitions. Both CERCLA and EPCRA generally treat emissions into the ambient air as releases into the environment…

In implementation, EPA has treated the phrase “occurs in a manner” in EPCRA Section 304(a)(2)(C) to mean the nature of the release in terms of how a substance enters the environment, not that reporting is required under Section 103 of CERCLA. Otherwise, Section 304(a)(2) would be rendered meaningless in covering releases of extremely hazardous substances that do not require reporting as hazardous substances under CERCLA, while requiring reporting under CERCLA at the same time.[10]

In other words, as CRS explains, if an extremely hazardous substance (as defined by EPCRA), is emitted in excess of the reportable quantity, and is released into the environment in a manner which would generally trigger reporting (as those terms are defined in CERCLA), then reporting is required under EPCRA 304(a)(2), even though reporting is not required under CERCLA. There is no condition-precedent that a substance first be reported under CERCLA in order to trigger the reporting requirements that exist under EPCRA 304(a)(2).[11]

 

IV. EPA’s Actions Following Enactment of the FARM ACT

 

When Congress passed the FARM Act it made clear that EPCRA reporting requirements for farms would continue. However, it is equally clear that the policy preference of EPA’s current leadership is that no farm be required to report any hazardous air emissions from animal waste. Following the Waterkeeper Alliance decision, in October 2017, EPA issued guidance that EPCRA reporting was not required because these emissions were associated with “routine agricultural operations,” and “would therefore not be within the universe of facilities which are subject to EPCRA section 304 release reporting.” This interpretation directly contradicts EPA’s previous interpretations of EPCRA, because as has been noted previously, many large farms had been reporting their animal waste air emissions since at least 2009.

Despite Congress providing only a narrow exemption from CERCLA reporting, EPA has taken steps to achieve its preferred policy outcome through a novel legal theory offered in the form of guidance published on April 27, 2018. In that document EPA suggested that EPCRA reporting for farms was no longer required because CERCLA reporting was no longer required, i.e., because “[a]ir emissions from animal waste thus do not “occur in a manner” which would require notification under CERCLA… these releases fall out of the reporting requirements of EPCRA Section 304.”[12]

Following the publication of this guidance, members of the Committee wrote to EPA about its ill-conceived guidance. In the letter, Committee members noted that EPA’s new guidance and interpretation of EPCRA Section 304 would have the presumably unintended effect of exempting reporting of releases for all substances designated as ‘extremely hazardous substances’ (EHS) under EPCRA, but not designated as hazardous substance under CERCLA.[13] Under EPA’s new interpretation of Section 304(a)(2), hundreds of EHS that currently are subject to release reporting requirements would now effectively be exempt.

EPA appears to have recognized the vulnerabilities intrinsic in its legal rationale for this new interpretation of EPCRA Section 304(a)(2)(C), and in the proposed rule attempts to draw a distinction between EPCRA reporting requirements from EHS for animal waste and for other substances listed as EHS.  The rationale EPA presents in its proposed rulemaking, however, is similarly flawed and unpersuasive. The crux of EPA’s argument lies in that the FARM Act specified the reporting exemption applied to “releases of any substance from animal waste into the air.[14] Namely, when Congress specified the medium into which the release occurred, EPA argues that the reporting criterion in Section 304(a)(2)(C) is no longer met, and therefore reporting requirements under Section 304 are obviated. This situation, EPA argues, is different for releases of other EHS under EPCRA which are not also hazardous substances under CERCLA.

To illustrate this difference, in its proposed rule EPA cites the EPCRA reporting requirements for trimethylchlorosilane, which is an EHS under EPCRA but not a hazardous substance under CERCLA. EPA notes that, even though trimethylchlorosilane is not reportable under Section 103(a), “a release of trimethylchlorosilane that ‘occurs in a manner’…would require notification under CERCLA Section 103(a) where, for example, the release is ‘into the environment’ as defined by CERCLA Section 101(22) . . . .”[15] The distinction EPA is attempting to draw between reporting requirements for releases “into the air” and releases “into the environment” is inapposite. The term “environment,” as defined in CERCLA Section 101(8), includes the ambient air. Therefore, a release “into the air” is by definition a release “into the environment.” More explicitly, the FARM Act deliberately limits the reporting exemption only for hazardous substances emitted into the air. Releases into the environment other than those into the air (i.e. spills, discharges into water, contamination of soil, etc.) were intentionally not exempted from these reporting requirements and are still required to be reported under CERCLA Section 103, which in turn requires reporting under EPCRA Section 304(a)(1).

Under EPA’s proposed interpretation of the FARM Act, if instead of limiting the CERCLA exemption to emissions into the air, Congress had instead carved out a broader exemption for reporting requirements under CERCLA and exempted releases into all environmental media, then the EPCRA reporting requirements under Section 304(a)(2) (into the air or any other media) would apply. In other words, EPA is arguing that a more expansive reporting exemption under CERCLA would require more extensive reporting under EPCRA. This is an illogical and unreasonable interpretation of the statute.  

V. Conclusion

 

EPA is required to faithfully execute the laws as passed by Congress. EPA’s proposed rule vastly exceeds EPA’s statutory authority and countermands unambiguous Congressional intent. EPA’s proposed interpretation of reporting requirements for hazardous air emissions from animal waste relies on a statutory interpretation that was considered, and specifically rejected by Congress, when it enacted the FARM Act into law. EPA should withdraw this proposed rule and faithfully execute and enforce EPCRA and CERCLA reporting requirements consistent with the laws passed by Congress.

We respectfully request that this letter and the attached Appendices be added to the docket under EPA-HQ-OLEM-2018-0318, “Amending Release Notification Regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA) for Air Emissions from Animal Waste.

Thank you for consideration of our views.

 

###



[1] 40 C.F.R. Part 302; 40 C.F.R. Part 355.

[2] 853 F.3d 527 (D.C. Cir. 2017).

[3] Hearing on S. 2421, the Fair Agricultural Reporting Method Act Before the Subcomm. on Superfund, Waste Mgmt. & Regulatory Oversight of the S. Comm. on Env’t & Pub. Works, 115th Cong. (Mar. 8, 2018) [hereinafter Hearing on FARM Act], available at https://www.epw.senate.gov/public/index.cfm/2018/3/legislative-hearing-on-s-2421-the-fair-agricultural-reporting-method-act.

[4] Hearing on S. __, the Agriculture Creates Real Employment (ACRE) Act, Before the S. Comm. on Env’t & Pub. Works, 115th Cong. (Mar. 14, 2018) [hereinafter Hearing on Draft ACRE Act], available at https://www.epw.senate.gov/public/index.cfm/2018/3/s-the-agriculture-creates-real-employment-acre-act.

[5]  Compare ACRE Act, S. __, 115th Cong. § 3 (2018) (attached as appendix to this letter), with FARM Act, S.2421, 115th Cong. (2018) (as introduced).

[6] Hearing on FARM Act, supra note 3, at 10.

[7] Id. at 17–18.

[8] Id. at 64-65.

[9] Hearing on Draft ACRE Act, supra note 4, at 49–50.

[10] Memorandum from David M. Bearden, Cong. Research Serv., to S. Comm. on Env’t & Pub. Works, Supplemental Analysis: Fair Agricultural Reporting Method Act/FARM Act (S. 2421), at 3–4 (Mar. 13, 2018) (emphasis in original), reprinted in 164 Cong. Rec. S1926 (daily ed. Mar. 22, 2018).

[11] See generally U.S. EPA Office of Solid Waste & Emergency Response, EPA 550-B-15-001, List of Lists: Consolidated List of Chemicals Subject to the Emergency Planning and Community Right-To-Know Act (EPCRA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Section 112(r) of the Clean Air Act (March 2015), available at https://www.epa.gov/sites/production/files/2015-03/documents/list_of_lists.pdf.

[12] U.S. EPA Office of Land & Emergency Mgmt., How does the Fair Agricultural Reporting Method (FARM) Act impact reporting of air emissions from animal waste under CERCLA Section 103 and EPCRA Section 304?, at 1 (Apr. 27, 2018), attached in Appendix.

[14] 83 Fed. Reg. 56791, 56793 (Nov. 14, 2018) (emphasis in original).

[15] Id.